SZSLF v Minister for Immigration & Border Protection & Anor (No.2)

[2013] FCCA 1522

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLF v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.2) [2013] FCCA 1522

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there was adverse information that the Refugee Review Tribunal was required to give to the applicant for comment – whether the Refugee Review Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was biased – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474,
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBEL v Minister for Immigration, Multicultural and Aboriginal Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant:

SZSLF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3079 of 2012

Judgment of: Judge Emmett

Hearing date: 2 October 2013

Date of Last Submission: 2 October 2013

Delivered at: Sydney

Delivered on: 2 October 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitor for the Respondents: Ms Sharon Burnett
Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3079 of 2012

SZSLF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 19 November 2012 and handed down on 20 November 2012 (“the RRT”).

2. The applicant claims to be a citizen of Nepal and of Hindu faith.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa and the decision of the delegate of the first respondent (“the Delegate”)  and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 19 July 2011 having departed legally from India on a passport issued in his own name.

2. On 6 October 2011, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship.

3. On 19 March 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 13 April 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 19 November 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 21 December 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to section 65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated the following:

   a)Inspired by his brother’s political activism, whilst at school, the applicant started joining protesters in a movement against the autocratic system.

   b)Whilst attending college, the applicant became an active member of the Nepali Congress-Nepal Student Union.

   c)After completing his Bachelors degree, the applicant started working for the Nepal Chamber of Commerce. He then became a member of a conducting committee on a Non Government Organisation (“NGO”), the Katunje Community Development Committee (“the Committee”).

   d)The Katunje village members had a poor perception of the Maoist party and the applicant motivated the people further to deny the Maoist ideology.

   e)The Maoists started to threaten the applicant in 2005 and blamed him for working for the Nepali Congress Party and provoking the village members against the Maoist Party. The police were unable to protect the applicant.

   f)In February 2006, the applicant was attacked by a group of men who accused him of acting against the Maoist Party.

   g)In March 2006, the applicant was then kidnapped by a man and he was beaten again and ordered to apologize or he would be killed.

   h)The applicant continued to receive threats and his wife was warned that if he did not resign from his NGO, he would be killed.

   i)The applicant’s son was born in 2006 and he continued to participate in political activities.

   j)In 2009, the Maoists continued to threaten the applicant.

   k)In 2010, youth members of YCL pressured the applicant to inform police that detained YCL members were innocent, the applicant refused. The police did not give the applicant assistance despite him reporting the incident.

   l)In May 2011, the Maoists commenced a strike which affected the private sector. In response, a large number of people participated in a peace rally against the Maoist strike. The applicant assisted with organising the rally and was in the front line of the rally representing the Chamber of Commerce.  After the rally, the applicant against received threats from the Maoists and blamed for his activities against the Maoist Party. The applicant reported the threats to police, however they were also afraid of the Maoists and were reluctant to take any action against them.

   m)The applicant resettled in India, however threatening phone calls did not stop. The Indian Maoists told the applicant they had identified his residence and would take his life if he informed police. The applicant was very concerned and was advised to go to Australia. He arranged a visa a came to Australia in 2011.

   n)The applicant has been told that Maoists are still searching for him in Nepal and India.

   o)The Maoists phoned the applicant’s wife and told her that they would punish the applicant.

The Delegate’s decision

1. On 21 February 2012, the applicant attended an interview with the Delegate.

2. On 19 March 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations.

3. The Delegate found that the applicant did not have a currently active political profile or that he would be engaged in political activities in Nepal that would cause him to face a real chance of persecution from the YCL for reasons of his political opinion in the reasonably foreseeable future in Nepal. The Delegate also found that there was no a real chance of serious harm in Nepal because the applicant was no more than a lowly functionary with the Nepal Chamber of Commerce and did not warrant ongoing attention from the Maoists/YCL.

4. The Delegate also noted that the applicant did not seek to flee overseas or seek protection before his visa to Australia became available despite having several opportunities to do so.

5. Further, the Delegate found that effective State protection was available to the applicant in Nepal.

The RRT’s review and decision

1. On 13 April 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 2 July 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 9 August 2012 to give oral evidence and present arguments.

3. On 9 August 2012, the applicant attended the RRT hearing with his migration agent and gave evidence. In particular, the applicant elaborated on the evidence given to the Delegate and in his written submissions to the RRT.

4. On 16 August 2012, the RRT again wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a further hearing on 12 September 2012 to give oral evidence and present arguments.

5. On 12 September 2012, the applicant and his migration agent attended the RRT hearing and again gave evidence. The RRT put to the applicant a number of concerns it had about his evidence. At the conclusion of the hearing, the RRT asked the applicant whether there was any reason beyond his fear of the Maoists and YCL that he was afraid to return to Nepal, to which the applicant confirmed there was not.

6. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

7. The RRT found that the applicant was not truthful and that his evidence was not credible, and accordingly made a finding that the incidents which the applicant claimed resulted in his fear of persecution in Nepal did not, in fact, occur.

8. The RRT first examined the alleged abduction and beating of the applicant, said to have occurred in March 2006. The RRT found that given the claim by the applicant that he had been beaten the previous month and had received threatening telephone calls as a result of his involvement in the Committee, it would be implausible that he would agree to accompany a man to a secluded location, knowing that man wished to discuss the applicant’s involvement in the Committee.

9. The RRT then considered the incident in December 2009, in which the applicant claimed to have been threatened at his home by Maoists and members of the YCL. The RRT found that the applicant had given inconsistent accounts of the reasons for the visit to his home by each group, having originally claimed that he had made complaints to the police about the Maoists and YCL, leading to members of each group being arrested. At the hearing, the applicant claimed that he had in fact complained to the police about each group attempting to extort him.

10. The RRT considered the applicant’s claimed return to Kathmandu in April 2011. The RRT found that such a return was implausible and that it was inconsistent with the applicant’s claimed fear of harm that he would then return to the location that gave rise to that fear, having already gone to great lengths to escape Nepal to India.

11. Finally, the RRT considered the alleged damage to the applicant’s home by members of the YCL in 2012 and found that it was implausible that the applicant’s wife would wait three to four months to contact the applicant about the alleged visit to the applicant’s home.

12. The RRT found that there was no credible evidence to suggest that any group wished harm upon the applicant.

13. The RRT considered the documentary evidence provided by the applicant. However, having found that the applicant had falsified claims about his activities in Nepal and the alleged harm he had suffered, the RRT did not accord evidentiary weight to the documents.

14. Accordingly, the RRT found that the applicant would not suffer Convention related harm were he to return to Nepal, nor would he suffer significant harm under the complementary protection provisions.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Nepali interpreter. 

2. On 15 March 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

3. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that he wished to continue with his application.

4. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. At the commencement of the hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application. The applicant made an application to adjourn the hearing of his matter today which was opposed by the respondent and refused by me in separate reasons.  

6. The applicant confirmed that he relied on the grounds contained in his application filed on 21 December 2012 as follows:

   “1. The Tribunal made Jurisdictional error by not providing me an opportunity to comment on the information which were used adversely. No particulars were given during the hearing. The Tribunal breached section 425of the Migration Act.

   2. The Tribunal decision was infected by bias because the way hearing was conducted cannot be justified. I felt that the Tribunal was trying to my answers inconsistent anyhow.”

7. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

8. At the conclusion of the submissions by the solicitor of the first respondent, Ms Burnett, the applicant was invited to respond and to make any further submissions he wished in support of his application. The applicant declined to make any further relevant submissions. 

Ground 1

1. Ground 1 was not supported by particulars, evidence or submissions.

2. I asked the applicant what was the information which was used adversely by the RRT and in respect of which he was not given an opportunity to comment. The applicant was unable to identify any such information.

3. The RRT’s decision record makes clear that the RRT explored the applicant’s claims with him at two hearings and put to him matters of concern it had about his evidence, noting his responses.

4. The RRT also heard submissions from the applicant’s migration agent and noted his request that if there were any inconsistencies or issues affecting the applicant’s credibility, that he and the applicant be given the chance to respond. However, the RRT noted that its concerns regarding the applicant’s credibility were put the applicant at the hearing and explored with him closely. The RRT found that the applicant and his migration agent had been given the opportunity to respond to its credibility concerns.

1. Ultimately, the RRT comprehensively rejected the applicant’s claims of past harm in Nepal, or that he had a well-founded fear of persecution in Nepal for any Convention reason. The RRT found that the applicant was not a witness of truth and that his account of events on which his protection claims are based is false.

2. To the extent that Ground 1 asserts that the RRT breached s.425 of the Act, no such complaint is made out. Section 425 of the Act entitles the applicant to be invited to a hearing before the RRT to give evidence and present arguments relating to the issues arising in relation to the decision under review. A fair reading of the RRT’s decision record makes clear that the issue that the RRT had with the applicant’s credibility and the reasons for its concerns were put to the applicant at the hearing and the applicant was given an opportunity to respond.

3. In the circumstances, a fair reading of the RRT’s decision record makes clear that the RRT made clear to the applicant that his credibility was an issue and asked the applicant to expand upon those concerns (see: SZBEL v Minister for Immigration, Multicultural and Aboriginal Affairs (2006) 228 CLR 152 at [47]).

4. The RRT’s concerns about the applicant’s credibility arose largely from inconsistencies that it found to exist in the applicant’s evidence. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

5. The information relied upon by the RRT in making its adverse findings was the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in the applicant’s evidence. None of that is information that the RRT was required to give the applicant for comment, either in accordance with s.424A or s.424AA of the Act.

6. Accordingly, Ground 1 is not made out

Ground 2

1. Ground 2 was not supported by particulars, evidence or submissions.

2. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

3. The applicant was directed on 15 March 2013 to file and serve any additional evidence to be relied upon, by way of affidavit, including any transcript of the RRT hearing, by 10 May 2013. The applicant was directed that evidence of a RRT hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the RRT hearing, he needed to give notice by 10 May 2013.  However, no document was filed by the applicant either in accordance with those directions or otherwise.

4. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

5. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

6. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

7. In the circumstances, the RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. Otherwise, Ground 2 appears more to be a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

9. The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

10. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant and his migration agent at two hearings; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    2 October 2013